(July 30, 2020) – Jeffrey Clark, head of the U.S. Department of Justice’s (DOJ) Environment and Natural Resources Division, sent a memorandum this week outlining a new policy “strongly disfavoring” federal enforcement in civil Clean Water Act (CWA) cases where a state has previously instituted a civil penalty proceeding under an analogous state law arising from the same operative facts.
The new policy requires DOJ attorneys to get Clark’s written approval prior to bringing a federal civil penalty action in such cases and specifies a limited set of circumstances under which his approval will be granted, such as where a federal action is necessary to protect an important federal interest not adequately addressed by the state action, a federal action seeks only injunctive relief to fill a “discernible gap” in prior state relief, or a failure to bring a federal action would amount to an “unfair windfall” for the regulated entity.
If a state wishes to request separate federal enforcement, under the new policy it must now do so in writing, citing reasons for federal involvement. According to the memorandum, a state’s request will only be granted where federal enforcement “would not amount to an unfair piling on” of penalties for clean water violations, which Clark says “can deprive a company of the benefits of certainty and finality.” Likewise, requests from DOJ attorneys to pursue subsequent federal enforcement when a state is unsuccessful in its own action “will ordinarily be disfavored,” though “exceptions may be granted with [Clark’s] express permission.”
All requests for approval to bring a federal action must include a discussion of the underlying state law, and the memorandum notes that federal involvement is “less likely to be called for in cases where the state law is federally approved or otherwise imposes restrictions that are similar to federal law,” such as where a state has assumed the National Pollutant Discharge Elimination System (NPDES) permitting program.
The policy does not apply to criminal matters or to cases where the proposed civil penalty action seeks relief based on new conduct post-dating the state proceeding.
Please contact NACWA’s Chief Legal Counsel, Amanda Aspatore, with any questions concerning the new enforcement policy.